Interchange Deal Advances

The multiple-party, multiple-year case over credit card interchange moved one step closer to resolution on Nov. 9 when the Honorable Judge John Gleeson granted preliminary approval of the settlement agreement between retailers, payment networks and nine major card issuers.

The proposed settlement in the U.S. District Court for the Eastern District of New York was originally announced to almost immediate controversy on July 13, after several years of litigation.

“We view Judge Gleeson’s ruling today as further indication that this historic settlement is a fair and balanced resolution to the epic swipe fee battle,” said Trish Wexler, spokeswoman for the Electronic Payments Coalition, an payment industry trade group organized around the interchange issue and including credit unions. “After seven years of negotiation, two years of mediation, and compromise by both sides, the judicial process continues to work effectively and we have taken another important step toward settling this dispute between retailers and the payment card industry.”

The EPC said the preliminary approval will almost immediately give retailers the benefits they demanded and 60 days from today, the card networks will implement rule changes. Merchants will now have the ability to add checkout fees (a retailer surcharge) at the register and form buying groups.

Retail groups, some of which had been parties to the case and the negotiations that led to the settlement, had filed objections to the possible approval but Gleeson rejected those, which led the EPC to express vindication.

“Let’s be clear–the objections from retailer lobbying groups are largely politically motivated, in hopes of influencing Congress to give them even more political handouts,” said Wexler. “Regardless, we remain entirely confident that the settlement will ultimately be approved–it is time to put an end to this epic battle.”

Judge Gleeson still has to grant final approval to the deal and the retail groups can continue to object or can appeal the settlement.

The National Retail Federation seemed to allude to this possibility in its pledge to explore legal avenues, issuing a release in which it said it will explore all legal options following the court’s decision.

“We respectfully disagree with the court’s assessment of the proposed settlement,” NRF Senior Vice President and General Counsel Mallory Duncan said. “We do not believe the proposal meets the legal tests required to meet even preliminary approval. Retailers, their customers and competition would suffer irreparable harm if this one-sided deal is allowed to move forward. We will consult with our attorneys and act as soon as possible to correct this injustice.” “This proposal benefits no one but lawyers and credit card companies, and should not be forced on the retail industry or retailers’ customers,” Duncan said. “It’s a morass of legal flaws, and rather than bringing about reform it would only entrench the anticompetitive behavior of the card companies while putting them beyond the reach of the law.”

And plenty of time remains for opponents to make their dissatisfaction known. According to sources on both sides of the case, a final resolution in the form of payments to retailers and new card interchange rules and schedules in place is unlikely before 2015.

Sometime before the end of the month, the card brands and major issuers that were defendants in the case should fund the class escrow account that serves to guarantee payments to plaintiffs.

Likely sometime in January 2013, the card brands will implement rule changes that will allow retailers to surcharge consumers who use cards. Retailers have complained that they are currently prevented from doing this in the payment rules, but merchant opponents of the settlement have challenged this provision on the ground that competition among retailers would likely prevent any merchant from taking advantage of the rule change.

Sometime between February to May of next year, the court will finish the most administratively intensive part of the settlement process in which notices of the settlement will be sent to class members and class members will face a deadline for filing objections or opting out of damages.

Between July of 2013 and March of 2014, the industry will measure the impact of a 10-basis point reduction in credit card interchange called for in the settlement.

The judge is expected to have a final decision on the settlement and to make a decision on appealing his judgment by mid 2014 and the disbursement of funds to merchants who agreed to participate in damages is expected sometime in 2015.